JOHNSON v. DEL VALLE (2012)

Plaintiff commenced this action seeking damages for injuries he sustained at work when defendant, plaintiff's coemployee, allegedly threw a baseball that struck plaintiff's face. Defendant moved for summary judgment dismissing the complaint on the ground that workers' compensation is plaintiff's exclusive remedy, and Supreme Court granted the motion. We reverse. Workers' compensation is the exclusive remedy of an employee injured “by the negligence or wrong of another in the same employ” (Workers' Compensation Law § 29[6] ). “[T]he words ‘in the same employ’ as used in the Workers' Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must ․ have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort” (Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 543, 429 N.Y.S.2d 622, 407 N.E.2d 466). Even assuming, arguendo, that defendant met his initial burden on the motion, we conclude that plaintiff raised a triable issue of fact with respect thereto (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Here, plaintiff raised a triable issue of fact “whether the actions of defendant were within the scope of his employment by submitting evidence that defendant's conduct was neither common nor condoned” in their workplace (Cloutier v. Longo, 288 A.D.2d 942, 942, 732 N.Y.S.2d 813; see Maines, 50 N.Y.2d at 544–545, 429 N.Y.S.2d 622, 407 N.E.2d 466; Shumway v. Kelley, 60 A.D.3d 1457, 1459, 876 N.Y.S.2d 299; cf. generally Lowe v. Kinn, 199 A.D.2d 743, 744–745, 605 N.Y.S.2d 439, lv denied 83 N.Y.2d 753, 612 N.Y.S.2d 107, 634 N.E.2d 603).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: